Remedies at the seat and enforcement of international arbitral awards: res judicata, issue estoppel and abuse of process in English law

Abstract

This chapter argues that, in certain circumstances, a party cannot re-litigate issues that have already been litigated, or could have been litigated, in proceedings that have actually been brought before the courts of the country of the arbitral seat. It examines the traditional approach to the relationship between the remedies at the seat and enforcement proceedings and demonstrates that such an approach is neither required under the New York Convention nor necessarily desirable as a matter of policy. The chapter identifies the English law doctrines of res judicata and abuse of process as possible constraints on the unsuccessful party's ability to raise, under article V of the New York Convention, any grounds that it raised or could have raised in a challenge against the award at the seat of the arbitration. It discusses the relevance and potential application in enforcement proceedings of two strands of the doctrine of res judicata: cause of action estoppel and issue estoppel.